Legal thoughts, since 2005.

This week's Daily Record column is entitled "Lawyers: Use your head when mining social media for evidence."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Last week, Rochester criminal defense attorney Gary Muldoon was kind enough to bring to my attention an interesting Texas decision: Youkers v. State, 2013 WL 2077196. This is one of many recent cases addressing the issue of judges using social media and whether their social media connections and interactions affect the trials over which they preside.

In Youkers, the assault victim’s father happened to be Facebook friends with the judge presiding over Youkers’ trial and sent the judge a private message in which he requested a lenient sentence for Youkers.

The judge, upon realizing that the message was an improper ex parte communication, stopped reading the message, sent a reply message stating that the message was a violation of ex parte rules, notified both lawyers regarding the incident, placed a copy of the message in the court’s file, and contacted the judicial conduct commission to determine if any other steps needed to be taken. The judge did not recuse himself from the matter.

Youkers then brought a motion for a new trial based, in part, upon the allegation that the judge was unable to be impartial and should have recused himself due to his social media connection and his Facebook interactions with the victim’s father.

During a subsequent hearing on the motion, the judge testified that he was simply acquaintances with the victim’s father and knew him only because they had both run for office during the same election cycle. Aside from the one set of messages that they’d exchanged relating to the trial, there was no other contact on Facebook and he had never read posts on the victim’s father’s Facebook wall.

Based on this evidence, the Texas Court of Appeals concluded that the judge acted properly and was not required to recuse himself under the circumstances of this case:

“Merely designating someone as a ‘friend’ on Facebook ‘does not show the degree or intensity of a judge’s relationship with a person.’ ABA Op. 462 … Thus, the designation, standing alone, provides no insight into the nature of the relationship … A reasonable person in possession of all of the facts in this case likely would conclude the contact between the judge and the father did not cause the judge to abandon his judicial role of impartiality; besides the evidence that the judge and the father’s acquaintance was limited, any appearance of bias created by the Facebook communications was dismissed quickly by the judge’s handling of the situation.”

In reaching its decision, the court wisely adopted the majority opinion that judges are permitted to interact on social media, explaining that online interaction is simply an extension of offline relationships: “The general premise that judges are not prohibited from using social media is consistent with the current standards suggested by the American Bar Association, as well as recent articles addressing the topic … Allowing judges to use Facebook and other social media is also consistent with the premise that judges do not ‘forfeit [their] right to associate with [their] friends and acquaintances nor [are they] condemned to live the life of a hermit. In fact, such a regime would … lessen the effectiveness of the judicial officer.’ Comm. on Jud. Ethics, State Bar of Tex., Op. 39 (1978). Social websites are one way judges can remain active in the community.”

The bottom line: judges are people, too, and social media is here to stay. This court wisely accepted these realities rather than operating in a bubble of denial. All in all, this was a well thought out opinion that is in keeping with the conclusions reached by most jurisdictions which have addressed the issue of judges using social media sites.

This week's Daily Record column is entitled "Lawyers: Use your head when mining social media for evidence."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Lawyers: Use your head when mining social media for evidence

Mining social media for evidence to support a case is all the rage these days. That’s because lawyers are finally comprehending the popularity and vast reach of social media. As a result, attorneys are quickly realizing that social media has the potential to be a gold mine of evidence in support of their clients’ cases.

Of course, as an attorney, you’re subject to ethical rules which necessarily affect how and when you can mine social media for evidence. Most lawyers are aware of these limitations and carefully consider their ethical duties before diving into social media to mine for evidence.

But not all of them, as evidenced by the actions of former Cuyahoga County, Ohio, Prosecutor Aaron Brockler, who has admitted to assuming the alias of a woman on Facebook and then contacting alibi witnesses of an accused killer whom he was prosecuting. He pretended to be a fictitious former girlfriend of the accused and then engaged the witnesses in a Facebook chat, during which he encouraged the witnesses to change their testimony.

Once his actions were discovered, Brockler was terminated for his unethical actions. Surprisingly, Brockler continues to maintain that his deceptive actions were perfectly acceptable and has been quoted by Sun News as saying: “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth … I think the public is better off for what I did.”

Clearly Brockler has failed to stay abreast of the multitude of ethics decisions that have been handed down over the past few years which address attorneys’ ethical obligations when mining social media sites for evidence. Overwhelmingly, ethics committees across the country have concluded that lawyers may not engage in deception when attempting to obtain information on social media, regardless of whether the party from whom information is sought is represented by counsel.

See, for example: Oregon State bar Ethics Committee Op. 2013-189 (lawyer may access an unrepresented individual’s publicly available social media information but “friending” known represented party impermissible absent express permission from party’s counsel); New York State Bar Opinion No. 843 [9/10/10] (attorney or agent can look at a party’s protected profile as long as no deception was used to gain access to it); New York City Bar Association Formal Opinion 2010-2 (attorney or agent can ethically “friend” unrepresented party without disclosing true purpose, but even so it is better not to engage in “trickery” and instead be truthful or use formal discovery); Philadelphia Bar Association Opinion 2009-02 (attorney or agent cannot “friend” unrepresented party absent disclosure that it relates to pending lawsuit); San Diego County Bar Association Opinion 2011-2 (attorney or agent can never “friend” represented party even if the reason for doing so is disclosed); and New York County Lawyers Association Formal Opinion No. 743 (attorney or agent can monitor jurors’ use of social media, but only if there are no passive notifications of the monitoring. The attorney must tell court if s/he discovers improprieties and can’t use the discovery of improprieties to gain a tactical advantage).

Obviously, Brockler didn’t get the “no trickery” memo, since the entirety of his Facebook interactions were rooted in deception. He also seems incapable of understanding the concept that lawyers are governed by a code of ethical conduct not applicable to police officers.

Perhaps now that he has more free time on his hands, he’ll make good use of it by studying the ethical rules of conduct governing Ohio attorneys. And, the next time you decide to mine social media for evidence, why not ensure that you’re complying with the applicable ethical rules of conduct as well? That way, unlike Brockler, you won’t put your job — and quite possibly your law license — at risk.

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Virginia ethics committee rules on virtual practices

In March, Virginia joined the growing number of jurisdictions that have addressed the ethical issues presented by lawyers who use cloud computing in their practices and/or practice law from a virtual office.

So, why are so many ethics committees are suddenly addressing these issues? Well, it’s because lawyers are increasingly using cloud computing platforms in their law practices and are opening up virtual law offices (made possible by virtue of cloud computing technologies).

So, it only makes sense that as these Web-based tools become more popular with lawyers, more lawyers are requesting that their jurisdictions provide ethical guidance regarding the appropriate steps to take when using these technologies in the practice of law.

Virginia added its analysis to the mix when it issued Legal Ethics Opinion 1872 (www.vsb.org/docs/1872-final.pdf). Among other things, the opinion addressed “the ethical issues involved in a lawyer or firm’s use of a virtual law office, including cloud computing.”

At the outset, the committee noted that lawyers using cloud computing need not achieve absolute security, since doing so is an impossibility: “The lawyer is not required, of course, to absolutely guarantee that a breach of confidentiality cannot occur when using an outside service provider. Rule 1.6 only requires the lawyer to act with reasonable care to protect information relating to the representation of a client.”

Next, the committee explained that in order for lawyers to meet the duty of exercising reasonable care, it is necessary for them to exercise due diligence when choosing a cloud computing vendor by carefully researching the vendor and its practices. A vendor will pass muster if, after examining the vendor’s “use of technology and terms of service,” the lawyer has a “reasonable expectation that the vendor will keep the data confidential and inaccessible by others. The committee emphasized that “if the lawyer is not able to make this assessment on her own, she will have to consult with someone qualified to make that determination.”

Another interesting issue addressed by the committee was the ethical obligations of attorneys when using electronic means to communicate with a client. The committee noted that ensuring that the client received and understood the communication was paramount: “(A)lthough the method of communication does not affect the lawyer’s duty to communicate with the client, if the communication will be conducted primarily or entirely electronically, the lawyer may need to take extra precautions to ensure that communication is adequate and that it is received and understood by the client … A lawyer may not simply upload information to an Internet portal and assume that her duty of communication is fulfilled without some confirmation from the client that he has received and understands the information provided.”

So, the use of cloud computing by lawyers is now expressly permitted in Virginia, just as it is in every other jurisdiction where this issue has been considered. At this point, I think it’s safe to say that the jury is no longer out and the verdict is in: cloud computing and virtual law offices are here to stay and can be ethically used by lawyers in the representation of their clients. It’s no longer a matter of whether lawyers can use cloud computing in their law practices; instead, it’s simply a matter of what steps must be taken prior to doing so.

Signup for a free webinar, hosted by MyCase, on June 27th, 2013 at 11am PDT / 2pm EDT. At the webinar, Carolyn Elefant and I will discuss the top ten ethical red flags your firm should consider when taking on new technology.

Covered topics will include:

Confidentiality and security considerations when using cloud and mobile solutions

Attorney-client relationships, advertising, and other challenges when using social and online platforms

Virtual law office ethical issues, such as avoiding the unauthorized practice of law

The Presenters:

Carolyn Elefant is the Founder and Principal Attorney with the Law Offices of Carolyn Elefant in Washington D.C. She is also an ABA-published author. She wrote “Solo By Choice” and is the co-author of “Social Media For Lawyers.”

Nicole Black is an Attorney in Rochester, New York, the Business Development Director at MyCase, ABA-published author of “Cloud Computing For Lawyers” and co-author of “Social Media For Lawyers.”

CLE Accreditation Pending – MyCase is currently working with the California State Bar to be able to provide free CLE credit to webinar attendees.

This week's Daily Record column is entitled "The latest in Android apps for lawyers."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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The latest in Android apps for lawyers

A while ago I wrote an article that focused on resources for Android-toting lawyers and promised that I’d follow up with an article on Android apps for lawyers. Well if you’re a lawyer who loves Android devices but haven’t yet figured out which apps will help you in your law practice, you’re in luck! What follows are some great Android apps that will help you to stay on top of your law practice no matter where you are.

And before I start, I’d like to extend my thanks to Rochester attorney Steven Feder, an avid Android user, for sharing his favorite list of Android apps from a recent presentation that he gave on this very topic. His list was a wonderful resource and helped me tremendously in drafting this article.

First, let’s focus on the substantive legal apps developed for lawyers using Android devices.

For conducting free legal research on the fly, look no further than the Fastcase app. Another great resource is dLaw, which provides free access to federal statutes and rules along with access to Google Scholar’s legal research capabilities, and also offers paid access to various state statutes and rules.

For a functional legal dictionary, there’s LawGuide. Another great resource is the NYSBA’s ethics app, which provides full, searchable access to all New York ethics opinions.

For specific practice area tools, there’s Karl’s Mortgage, a mortgage amortization app and QuickTax, an app that is chock full of tax-related information.

Picture it Settled is an app that is currently free, although that may start charging an access fee down the road. This app aids in settlement negotiations by using predictive analytics — including vast amounts of settlement data — to assist lawyers during negotiations.

And of course, there are apps devoted to legislative and Supreme Court topics, including We the People (the full text of the U.S. Constitution), Congress (everything you ever wanted to know about Congress and pending bills), and PocketJustice (everything you ever wanted to know about the U.S. Supreme Court).

If a mobile office is what you seek, the following apps will help you achieve that goal. First, there’s Documents to Go, which is a great, albeit somewhat pricey ($24.95), word processing app that allows you to create Word documents.

Next, ScanToPDF is a really handy app that turns your Android device into a scanner. EFax is a mobile fax app that is a really useful tool, but you have to sign up for their eFax service in order to use it. Finally, there’s SignEasy, an app makes it easy to sign a document using your finger or of stylus and then share the executed document via email.

And last but not least, a few apps that turn your Android device into a personal assistant. First there’s SpeakToIt, an app that allows you to speak to your phone in order to obtain all sorts of information and also performs tasks and notifies you of important events. And, finally, DictaDroid ($1.99) is a dictation app that transforms speech into text.

So there you have it. A great list of Android apps for the mobile 21st century lawyer. Download a few and see how much you can get done using just your Android device.

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disclaimer

This site is intended purely as a resource guide for educational and informational purposes and is not intended to provide specific legal advice. This site should not be used as a substitute for competent legal advice from a professional attorney in your state. The use and receipt of the information offered on this site is not intended to create, nor does it create, an attorney-client relationship.

Please feel free to contact me via e-mail or otherwise. However, please be advised that an attorney-client relationship is not created through the act of sending electronic mail to me.

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